Misuse of military courts in Somalia

Human Rights Watch has issued a report titled The Courts of "Absolute Power": Fair Trial Violations by Somalia's Military Court. The accompanying press release includes these observations:

In August 2011, following intensive fighting in Somalia’s capital, Mogadishu, and the withdrawal of the main Islamist opposition group, Al-Shabaab, from the city’s center, then-President Sheikh Sharif Sheikh Ahmed of the former Transitional Federal Government declared a state of emergency in areas vacated by Al-Shabaab. The decree granted the military court jurisdiction over all crimes committed in these areas – including by default over civilians. Although the state of emergency expired after three months, the military court has continued to try a range of defendants beyond those envisioned under the Military Code of Criminal Procedure.

The military court has tried Al-Shabaab-related cases, as well as cases traditionally difficult for civilian courts, such as prosecuting members of the police and intelligence agencies. African and international human rights standards largely prohibit trials of civilians before military courts, and increasingly call on countries to ensure that military court jurisdictions are restricted to military offenses by military personnel.

The Somali authorities and judiciary have justified trials of all Al-Shabaab-related cases, including those involving civilian defendants, on the grounds that the regular courts are unprotected and vulnerable to attack in the face of the country’s pressing security needs. While these are genuine concerns, this cannot justify the violation of defendants’ rights to a fair trial.

Only recently have military court judges sought to provide defendants with access to legal counsel. However, given the lack of lawyers in the south-central region controlled by the government and the court’s practice of carrying out mass trials, defendants often have very limited access to the lawyers assigned to them. In July 2013, for example, the mobile court heard dozens of cases over four days in Baidoa. One of the only qualified lawyers in the town was brought in at the last minute on the first day of the hearings to represent all the defendants; he was, unsurprisingly, not able to meet with every defendant, let alone have the opportunity to prepare an adequate defense. In addition, defense lawyers are restricted in their ability to adequately prepare a defense because of a lack of appropriate preparation time and information regarding charges.

One defense lawyer blamed the trial court judges for impeding his access to necessary documents and files: “If it was a civil court I could easily ask for a [written judgment], but these military tribunal guys think they have absolute power, and you can’t talk to them. You can’t ask them anything, and they don’t respect the human rights of people.”